Sunday, December 7, 2014

Amendments Part 2: Federal Rules of Evidence

Yesterday, we discussed recent amendments to the Federal Rules of Criminal Procedure. Today: the Federal Rules of Evidence.
Two amendments, both to hearsay exceptions (go here for the text):

Rule 801(d)(1)(B) (prior consistent statements)
The amendment offers a second way in which a prior consistent statement can be admitted as not hearsay (i.e., as substantive evidence):

to rehabilitate the declarant's credibility when attacked on another ground.

That is a direct quote. Remember, this rule applies when a witness testifies and is subject to cross-examination about a prior statement. According to the Committee Notes, "the rule does not make any consistent statement admissible that was not admissible previously -- the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well."

Rule 803(6)-(8) (business records)
The amendment alters language in 803(6)(E), 803(7)(C), and 803(8)(B). Those provisions provide that any business record admitted under a hearsay exception must be trustworthy. The old rule did not address who had the burden to demonstrate trustworthiness or untrustworthiness.
The new rule places the burden on the opponent of the evidence to establish untrustworthiness.